Interactive Map: Latin America
Aerospace

Warsaw System*

In accordance with the decision rendered by the Supreme Federal Court (STF) in the cases involving Air Canada and Air France (May 2017), the Montreal Convention shall be applied to matters involving time bar interruption and cargo damage occurred during international carriage.

*N.B.: Brazil has ratified the following instruments which are part of the Warsaw System:

• Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)
• Protocol to Amend the Warsaw Convention of 1929 (The Hague, 28/9/55)
• Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by air Performed by a Person Other than the Contracting Carrier (Guadalajara, 18/09/61)
• Additional Protocol No. 1 (Montreal, 25/9/75)
• Additional Protocol No. 2 (Montreal, 25/9/75)
• Additional Protocol No. 4 (Montreal, 25/9/75)

MC1999

In accordance with the decision rendered by the Supreme Federal Court (STF) in the cases involving Air Canada and Air France (May 2017), the Montreal Convention shall be applied to matters involving time bar interruption and cargo damage occurred during international carriage.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Total: c. USD 648,000 (BR3,416,949) at current rates

Comprising:

Material damages: c. USD 418,000 (BRL2,204,949).

In general terms, material damages are calculated considering the average earnings of the victim, her/his life expectancy and the financial reliance of his/her beneficiaries. For a lump sum payment, usually some discount is utilised.

Moral damages: c. USD 115,000 (BRL 606,000) up to USD 230,000 (BRL 1,212,000). Usually awarded in Federal minimum wages (currently equivalent to BRL 1,212 - approx. USD 230 - since January 2022). The moral damages depend on the how closely related the victim and the claimant were to each other. In 2017, the STF (Supreme Federal Court) indicated that it would not apply the international convention limits to moral damages claims.

Non-Aviation

Total c. USD 533,000 (BRL2,810,948) at current rates.

Comprising:

Material damages: c. USD 418,000 (BRL2,204,948). In general terms, the material damages are calculated considering the average earnings of the victim, her/his life expectancy and the financial reliance of his/her beneficiaries. For a lump sum payment, usually some discount is utilised.

Moral damages: c. USD 115,000 (BRL 606,000). Usually awarded in Federal minimum wages (currently equivalent to BRL 1,212 - approx. USD 230 - since January 2022). The moral damages depend on the damage caused to the honour and dignity of the victim and also how closely related the victim and the claimant were to each other.

PUNITIVE DAMAGES

Not awarded. Culpability is taken into account when moral damages are awarded. Moral damages are generally in the region of 500 minimum wages per victim (approx. BRL 606,000 - c. USD 115,000).

LITIGATION COSTS

Losing party potentially has to pay 10-20% of the award to the opposing counsel plus court fees.

Legal interest rates

12% per annum, applicable from date of service of the proceedings in case of contractual liability. The Court can also establish the legal interest rates applicable from the date of the loss in tort / extra-contractual liability claims.

Monetary correction

This is the periodical adjustment of the currency value based on the value of inflation during a certain period, with the objective of compensating the currency's value loss, and also has a significant impact on claim values and is applied as follows:

a) Moral damages: generally, from the date of the loss (for tort-based claims) and from the date of the filing of the proceeding (for contractual claims); and,

b) Material damages: generally, from the date of event (accident)

Does Brazil have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

In theory, the Brazilian Aeronautical Code establishes limits for the liability of air carriers. However, more recent laws, such as the Consumers Defence Code (1990) and the Civil Code (2002), are commonly applied as a way of circumventing the low limits established by the aeronautical legislation.

In 2016, the Brazilian aviation authority (ANAC) implemented Regulation No. 400 which deals with compensation and immediate assistance to passengers in the event of denied boarding, delay / cancellation of flights and baggage damage/loss.

It is worth noting, however, that making a claim under Regulation No, 400 does not prevent passengers from going on to sue the airline in court for further proven damages.

Montreal Convention 1999

In force in Chile since 2009 and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Total: c.USD 880,000 at current rates (CLP719,300,000)– unless, unusually, a limit can be applied

Comprising:

Material damages: c.USD 738,000 (CLP604,000,000)

Moral damages: c.USD 134,000 (CLP109,800,000)

Funeral expenses: c.USD 3,500 (CLP2,750,000) to c.USD 7,000 (CLP5,500,000)

Non-Aviation

Total: c.USD 678,500 at current rates (CLP555,400,000). No limits apply.

Comprising:

Material damages: c.USD 605,000 (CLP495,000,000)

Moral damages: c.USD 67,000 (CLP54,900,000)

Funeral expenses: c.USD 5,000 (CLP2,750,000) to c.USD 10,000 (CLP5,500,000)

PUNITIVE DAMAGES

Not applicable, except under Consumer Laws.

LITIGATION COSTS

In general, each party bears its own costs.

Legal interest rates

Average market rates applied as legal interest rates, but there is uncertainty in the law / jurisprudence regarding the date from which interest begins to accrue.

Monetary correction

Correction is applicable when the claimant requests this. There is no set calculation mechanism. Also, there is uncertainty on the date upon which monetary correction starts to accrue.

Does Chile have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

In such circumstances, where airline delayed or cancelled a flight for reasons of force majeure, security, weather or other similar events, it shall not be liable if it proves that it took the necessary measures to avoid the event causing the delay or cancellation.

1. What rights does the passenger have in the event of a delay or cancellation not attributable to the airline?

If the passenger decides to continue with the contract, he/she has the right to board the next available flight of the carrier or an alternative transport. In addition, if the delay is more than 3 hours or, in case of cancellation, the offered flight departs more than 3 hours later than the scheduled time of the cancelled flight, the passenger has the right to terminate the contract by requesting reimbursement of the ticket price.

2. What happens to connecting flights in the event of a flight delay or cancellation?

In the event of a delay or cancellation, the airline is liable for the connections as long as they are part of the same contract. If this is not the case, the airline is liable for missed connections and the resulting costs only if there is negligence on its part, and the affected passenger can take legal action in the courts to obtain compensation.

3. What rights does the passenger have in the event of a delay or cancellation attributable to the airline?

The passenger may choose whether to continue the contract of carriage by air. If the passenger decides to not to continue the contract of carriage, and the delay is more than 3 hours or, in case of cancellation, the offered flight departs more than 3 hours late, the passenger is entitled to a ticket price reimbursement and compensation for damages, if any.

4. Can an airline deny boarding for booking more tickets than seats available on an aircraft?

Yes, to mitigate the negative consequences arising from passenger "no shows".

4.1 What is the procedure in case of denied boarding due to overbooking?

In the event of overbooking, the airline must ask for volunteers to surrender their reservations in exchange for agreed benefits. If the volunteers are not sufficient, and a passenger is denied boarding against his or her will, he or she has the rights described below.

The carrier must give priority boarding to unaccompanied children, persons with disabilities, elderly passengers or passengers in poor health, pregnant women who, because of their condition, require priority boarding and, in general, passengers who, for humanitarian reasons as determined by the carrier, should be given priority boarding.

4.2 What rights do passengers have in the event of denied boarding due to overbooking?

Passengers who are denied boarding and decide to terminate the air transport contract, and therefore, not to take the flight, have the following rights:

a.- Reimbursement of the price paid for the ticket; and

b.- Compensation according to the following table:

* UF stand for UNIDADES DE FOMENTO, they are a value, which is self-corrected monthly according to the consumer price index, published monthly.

The current value (it is referential in case you would like to incorporate it) is USD 39.76 for each UF.

4.3. What rights does the passenger have if he/she is denied boarding due to overbooking on a connection?

At the passenger's choice:

• Boarding on the next flight that the carrier has available or on an alternative transport and shall be entitled to financial compensation and benefits.
• Not to board and will be entitled to reimbursement of the value of the unused portion of the journey, in addition to the financial compensation; or
• Be returned to the point of departure with reimbursement of the fare, in addition to the financial compensation and welfare benefits specified.

Warsaw System

Approved by Argentina on September 30, 1951 under Law No. 14,111. Argentina had also approved the Hague Protocol to amend the Warsaw Convention (1955) under Law No. 17,386 and the Additional Protocol No. 1, 2 and 3 and the Montreal Protocol No. 4 under Law No. 23,556.

Montreal Convention 1999

Approved by Argentina on December 3, 2008 under Law No. 26,451. It came into force on January 22, 2009.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

There are no current official statistics from the National Civil Aviation Administration nor from the federal judicial power and there are significant fluctuations in the exchange rate. It is, therefore, difficult to reasonably estimate quantification of damages.

The Aeronautical Code does not offer guidelines for judges to value damages and merit compensations. However, it does provide liability limits for the carriers. Passenger claims, including both material and moral damages are limited to 1,000 Argentinos Oro (c. USD 390,000 at current rates).

Non-Aviation

A monthly income of USD 4,000 is considered high in Argentina. On average with such income, an Argentine court might grant compensation of approximately ARS 6,000,000 plus interest (i.e. USD 54,000 at the current exchange rate) plus ARS 4,500,000 (i.e. USD 40,000) for moral damages to a widow and two children.

PUNITIVE DAMAGES

Punitive damages are not regulated in the Aeronautical Code nor in Resolution No. 1532/1998 on the General Conditions for Air Transport Contract but in the Consumer Law (“LDC” - Law No. 24,240, Article 52 bis). Punitive damages have only been applied in certain isolated and debatable aviation cases.

LITIGATION COSTS

In principle, costs are borne by the losing party. Depending on the circumstances, costs can be roughly estimated at approximately 40% of the amount in dispute, including interest.

Legal interest rates

When the sum claimed is expressed in Argentine pesos, courts tend to fix an annual interest, currently 40%. However, for compensations denominated in US dollars, interest is usually fixed at a 8% annual rate. Under certain circumstances, compound interest can be claimed.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

There is no fixed compensation for delay, cancellation or denied boarding; however, Resolution No. 1532/98 expressly addresses certain passengers’ rights when an airline fails to comply with its schedules or itineraries, cancels the flight or denies boarding.

Warsaw System

The convention for the unification of certain rules for the international carriage by air Montreal 1999

Decision 619 Rules for the Harmonisation of the Rights and Obligations of Users, Carriers and Operators of Air Transport Services in the Andean Community

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Civil Aviation Law

Article 116.- Carrier's liability for passengers provides that in the carriage of passengers, the amount of the carrier's liability in respect of each passenger for death, injury and damages suffered shall be that established in the respective regulations, unless a higher amount is fixed by a court decision, settlement or arbitration award.

Article 124- Determination of higher compensation.

The carrier shall not be liable for compensation in excess of the compensation provided for in the respective regulations, to the extent that it proves:

a) That the damage was not caused by inexcusable fault, wilful act or omission of the carrier or its servants in the performance of their duties, or

b) the damage was solely due to the inexcusable fault or other wilful act or omission of a third party.

Regulation of the Civil Aeronautics Law

Article 267.- In the carriage of persons, the amount of compensation of the carrier in relation to each passenger is as follows:

a) In case of death, the sum of 45,000 SDRs (c. USD 63,000);

b) In case of bodily injury, up to 45,000 SDRs.

If in cases of death or bodily injury the relatives or the passenger must prove the damage or loss exceeds the amounts indicated in letters a) and b) of the preceding paragraph, the carrier's liability for the excess is subject to the provisions of Article 124 of the Law.

LITIGATION COSTS

The cost of the proceedings will be determined by the amount of the claim in the compensation proceedings, plus costs (payment of court fees) and costs (lawyer's fees). The losing party must pay the winning party's costs court fees and attorney's fees.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay

  Regulation of the Civil Aeronautics Law.

  Article 269- In case of damage resulting from delay in the carriage of passengers by air, the liability of the carrier is limited to 1,000 SDRs per passenger.

  Additionally, the Decision 619 states:

  Art. 8 (…)

  - When the delay exceeds six hours, in addition to call, refreshments or food, the carrier shall compensate the passenger in accordance with the provisions of paragraph e) of this item *. It shall also provide accommodation in cases where it is necessary to stay overnight, transfer expenses, or reimbursement (immediate if not in their usual place of residence), at the passenger's choice, unless the passenger voluntarily agrees to extend the wait.

  e) Additional compensation. The air carrier shall compensate the passenger with a minimum sum equivalent to 25% of the value of the journey not performed, in cash or in any other form accepted by the passenger.

• Cancellation

  Regulation of the Civil Aeronautics Law

  Third paragraph of the Article 274-. In case of flight cancellation, the passenger may choose to travel on the next flight operated by the same carrier on the same or a similar route. In this case, the passenger is entitled to the payment of the ordinary costs of accommodation, food, communications and travel that are necessary.

• Denied boarding?

  Regulation of the Civil Aeronautics Law

  Article 233- Once the contract of carriage has been concluded, if the carrier or the competent authority finds that, on boarding, the passenger shows obvious signs of mental disturbance or illness requiring emergency medical attention, is intoxicated, is under the influence of psychotropic substances or is in any other condition or state that could affect the normal course or jeopardise the safety of the flight, it may refuse or condition the passenger's boarding and carriage. In such cases, the carrier is only obliged to refund the ticket price.

If yes, when did it come into force?

• Civil Aviation Law: 10 May 2000
• Regulation of the Civil Aeronautics Law: 22 December 2001
• The Montreal Convention: 18 May 1999
• Decision 619: 15 July 2005

Warsaw System

In force. Bolivia ratified the 1929 Warsaw Convention only and is not a party to any other Warsaw instruments.

Montreal Convention 1999

In force.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

According to the Bolivian Civil Aeronautics Law, in passenger transportation, the carrier's liability in relation to each passenger is limited to 32,500 Special Drawing Rights (SDRs), which are quoted daily by the Central Bank of Bolivia (at current rate approx. USD 46,000). However, the carrier shall not be entitled to rely on this limit of liability, when the damage is caused by its wilful misconduct or by the wilful misconduct of any of the persons under its dependence, in the exercise of his functions, in which case it is up to the discretion of the judges to award such damages. However, since the MC1999 has been ratified by Bolivia, the judges may consider up to 100,000 SDRs for liability purposes.

Non-Aviation

It is not possible to estimate the recoverable damages as these are entirely at the discretion of the court, depending on the particular circumstances of each case.

Punitive damages

Not applicable.

LITIGATION COSTS

Generally, the losing party pays for court costs and legal fees.

Legal interest rate

6% per annum interest legal rate

On September 09, 2009, the then president of Bolivia approved by Supreme Decree No. 0285, the Regulation for the Protection of Users' Rights in Air and Airport Services, concerning, among others facilities to be provided to passengers by airlines due to denied boarding (overbooking), cancellation of flights and delays in flights. They provide as follows:

• Delay:

  In cases of delays attributable to the carrier, at the initiation of the flight (from deplaning) and therefore the scheduled flight time is not met, the carrier will compensate the passenger observing the following criteria:

  1. When the delay is more than two (2) hours and less than four (4) hours, the passenger shall be provided with refreshments and, at his/her request, a telephone communication or by the most expeditious means available to the place of destination, or to the place of origin, in case of connections, which shall not exceed three (3) minutes.

  2. When the delay is more than four (4) hours and less than six (6) hours, in addition to the above, the passenger shall be provided with food (breakfast, lunch or meal, depending on the time).

  3. When the delay exceeds six (6) hours, in addition to the above, the carrier shall compensate the passenger with a minimum amount equivalent to twenty-five percent (25%) of the value of the ticket on the unfulfilled route, payable in money or any other form accepted by the passenger. Additionally, when this delay exceeds 22:00 hours (local time), the airline must provide the passenger with lodging (if he/she is not at home) and transfer expenses (or immediate reimbursement if he/she is not at his/her usual place of residence), unless the passenger voluntarily accepts to extend the wait when it is foreseeable that the flight will take place within a reasonable period of time.

• Cancellation:

  In the cases in which the carrier decides to cancel the flight, having the passenger confirmed reservation, without having been reimbursed the amount of the ticket in the proportional part of the trip not made or its totality if the flight no longer has reason to exist, nor a substitute flight for the same day had been obtained, the expenses of food, lodging in which it is necessary to stay overnight and transfer airport - hotel - airport will be covered. In addition, if a delay occurs prior to the cancellation of the flight, the user shall receive the compensation provided for delays above, as applicable.

  Notwithstanding the foregoing, the passenger may agree with the carrier, where appropriate, on a return flight to the first point of departure, as soon as possible, or onward transportation to the final destination under comparable conditions of carriage as soon as possible, or at a later date at the passenger's convenience.

• Denied boarding?

  If, after the passenger has confirmed reservation and has presented himself/herself at the airport in due time, boarding is denied due to overbooking, the carrier shall, as a first step, request voluntary passengers to surrender their reservations in exchange for certain benefits, under the conditions agreed upon by the voluntary passenger and the operating carrier, which may be as follows:

  (a) Services, telephone communication, meals, transportation, airport and lodging taxes until the next flight and other expenses directly related to your trip, which may be all or part of them as required.

  b) Endorsement or transfer to another carrier.

  c) A compensation equivalent to twenty-five percent (25%) of the value of the unfulfilled trip, payable in cash or in any other form accepted by the passenger, which may be tickets, bonuses or mileage recognition, for any service offered on the carrier's routes.

  In the event that the number of volunteers is not sufficient for the remaining passengers with reservations to board the flight, the air carrier shall immediately compensate and assist them providing the passengers with a space on the next available flight to his/her final destination, on the same date and on the same route. In case no flight is available, the carrier shall make the necessary arrangements, at its own expense, for the boarding of the passenger with another carrier as soon as possible.

  In addition to the above, the carrier shall compensate the passenger with a minimum sum equivalent to twenty-five percent (25%) of the value of the ticket on the unfulfilled route, payable in cash or any other accepted form.

If yes, when did it come into force?

• Civil Aviation Law: 10 May 2000
• Regulation of the Civil Aeronautics Law: 22 December 2001
• The Montreal Convention: 18 May 1999
• Decision 619: 15 July 2005

Warsaw System

May 15th, 1933.

Montreal Convention 1999

November 4th, 2003.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material compensation: MXP $2,721,293.40 (c. USD 132,500).

The Federal Aviation Law establishes a fixed compensation amount for death cases.

Moral compensation: left to the courts’ discretion, depending on the circumstances of the case.

Non-Aviation

Material compensation: MXP $907,097.80 (c. USD 44,000.00).

Moral compensation: left to the courts’ discretion, depending on the circumstances of the case.

Punitive damages

Left to the courts’ discretion, depending on the circumstances of the case. However, they are considered an element of moral damages, based on precedents.

LITIGATION COSTS

10%-12% if the case value is up to MXP $268,860.00 (c. USD 13,500.00);

8%-10% if the case value exceeds such threshold, yet below MXP $537,720.00 (c. USD 27,000.00);

6%-8% if the case exceeds such threshold.

Legal interest rate

9%.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding

If yes, when did it come into force?

June 27th, 2017 (except for denied boarding which was set forth since the Civil Aviation Act was issued on 13th May, 1995).

One-hour delay

Future flight discounts to the same destination and/or food and beverages.

Two-hours’ delay

Future flight discounts (of at least 7.5% of the ticket price) to the same destination and/or food and beverages.

Four-hours’ delay and Cancellations

Telephone and internet services, and at passengers’ choice:

a) Full or leg ticket refund and indemnification of at least 25% of the price.

b) Next flight ticket, food and beverages according to waiting time, accommodation and required commutes;

c) Ticket substitution for the same destination for future date and indemnification of at least 25% of the price.

Boarding denial (only due to overbooking)

At passengers’ choice:

a) Full or leg ticket refund and indemnification of at least 25% of the price;

b) Next flight ticket, telephone service, food and beverages according to waiting time, accommodation and required commutes;

c) Ticket substitution for the same destination for future date and indemnification of at least 25% of the price.

When volunteering, passengers may agree to any kind of benefits with the airline, which in no case shall be less than the ones listed above.

Warsaw System

Traditionally, Colombian courts have applied the Warsaw System. Please note that Colombia is a party to the 1929 Warsaw Convention, the 1955 The Hague Protocol, the 1961 Guadalajara Convention, and the Montreal Protocols No. 1, 2, 3 and 4.

Montreal Convention 1999

Colombian courts do apply MC99 and, this includes consumer courts. MC99 is in force in Colombia since November 4th, 2003.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

USD 450,000

Non-Aviation

USD 450,000

Colombia uses a specific formula for the calculation of material damages. For moral damages, the figures are based on the parameters for compensation established by Colombian High Courts. None of these are binding but are widely used by judges and practitioners, and it is difficult to find claims departing from these formulas/parameters.

Punitive damages

No

LITIGATION COSTS

Typically, between 3 to 7.5% of the claimed amount of legal fees under a fully adverse judgment scenario. Actual and proven out-of-pocket expenses paid by the other party may also be recovered.

Legal interest rate

6% per annum. Commercial and moratory interest shall not exceed 1.5 times the current banking interest rate as certified by the Financial Superintendence (20% per annum, in average)

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

Yes. Decision 619 of 2005 of the Andean Community in force as of July 2005 (supranational) and/or Colombian Aviation Rules in force as of 2004. Internal debate still exists in regards to the applicability of either regime (supranational v. domestic).

Warsaw System

Recognised by the Republic of Panama

Montreal Convention 1999

Recognised by the Republic of Panama

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Limit of liability is $25,000 - Art 157, Law 21 of 2003

No limit of liability applies for negligence or fault of carrier and employees - Art 158, Law 21 of 2003

Non-Aviation

Most unlimited liability aviation claims support their material and moral damages under Art 1466A. The jurisprudence has recognized calculations where it takes as reference the retirement age, 62 years. A possible claim for the example given would be near USD 1.5 Million for material damages . Moral damages require to be demonstrated by claimant, as they are defined as traumatic or psychological related damages, and for the surviving family it could be calculated at USD 300.000

Punitive damages

In Panama, they arise out of criminal actions and the affected parties will in those cases claim damages based on Articles 1644 and 1645, as Per disposition of the Panama Penal Code. Claim amounts for material damages may be similar to the previous example, but moral damages will increase.

LITIGATION COSTS

USD 225,000 , includes appeal stages

Legal interest rate

10% as per Commercial Code , Art 123

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for: Does not exist but passengers may seek remedy via Panama consumers protection law.

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

Warsaw System

In force and generally applied by courts

Costa Rica has ratified the following instruments, which are part of the Warsaw System:

Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)

Protocol to Amend the Warsaw Convention of 1929 (The Hague, 28/9/55)

Montreal Convention 1999

In force and generally applied by courts

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material damages: c. USD 128,000 (c. 81,600,000 Colones at current rates).

The amount established by the Civil Aviation Act can be exceeded. Material damages are generally limited to reimbursements of medical expenses and loss of income.

Moral damages are calculated at judge’s discretion.

Non-material damages are subjective. The largest award made was in the low six figures and involved a particularly unpleasant set of facts. This suggests a generally conservative approach, but it is not precedent and a judge can diverge.

Non-Aviation

Depends on the particular circumstances of each case (namely the evidence and the circumstances of the case and the victim).

Punitive damages

Not applicable

LITIGATION COSTS

Losing party generally pays for the legal fees and court costs.

Legal interest rate

Varies constantly, with accrual starting from the date of loss.

Monetary correction

Is applicable (on a retroactive basis at the time of the award) if expressly requested by the claimant.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

There is no specific regulation addressing this. Nevertheless, these points could be viewed as a breach of duties under the Consumer Protection Act (1995), with penalties ranging from USD 500.00 to USD 20,000.00. Also, if there is no reason for denying boarding, this could be viewed as consumer discrimination.

Warsaw System

Not applicable

Montreal Convention 1999

In force and generally applied.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

USD 100,000

Non-Aviation

USD 52,000

Punitive damages

Not applicable

LITIGATION COSTS

USD 1,500

The losing party must pay the expenses of litigation, but not the legal fee.

Legal interest rate

12% annually.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

No.

Warsaw System

In force

Montreal Convention 1999

Not in force

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

If the death is not caused by misconduct or negligence, a Judge will likely grant an award of SDR 100,000 in this case (USD 140,000 = c.VES 31,500 at the current official exchange rate). (Article 100 of the Civil Aeronautical Law)

If the death is caused by misconduct or negligence, a Judge will likely grant an award of USD 500,000 for material damages and an award of USD 100,000 for moral damages = USD 600,000 (VES 135,000 at the current official exchange rate).

Non-Aviation

Actual damages and “moral” (pain and suffering) damages. Must be proven at trial. An award of moral damages depends on the Judge’s criteria and the circumstances of the loss.

Punitive damages

Not available

LITIGATION COSTS

Between USD 10,000 and USD 50,000. These costs may vary depending on the circumstances of the case. The litigation costs shall be paid by the losing party. The costs shall not exceed 30% of the value of the claim. If there is no totally losing party (i.e. a totally favorable judgment is not awarded to any of the parties), each party shall bear its own costs.

Legal interest rate

3% per annum

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay/Cancellation

  Yes. Article 100 of the Civil Aeronautical Law provides that in case of delay or unjustified cancellation the compensation to the passenger shall amount up to SDR 4,150 (USD 5,800 = c.VES 1,300 at the current official exchange rate).

• Denied boarding?

  According to the Article 126 of the Civil Aeronautical Law, in that case air service operators can be fined 1,000 tax units (VES 20 = USD 4.5).

If yes, when did it come into force?

2009.

Warsaw System

2 years

Montreal Convention 1999

2 years

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

There have been no awards in aviation matters in the past fifteen years.

Non-Aviation

USD 480,000.00 where the children are 4 years old and dependant on the father.

Punitive damages

USD 5,000.00

LITIGATION COSTS

The costs are recoverable from the losing party and there is no cap on the quantum of costs which may be recovered. There is no specific method by which costs are calculated and it is currently granted at the discretion of the Court. Costs may be approximately USD 15,000

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

Currently, there are no such laws or regulations. However, the Guyana Consumer Affairs are seeking to have certain regulations introduced to govern these issues.

Warsaw System*

In force and generally applied by courts

*N.B.: Guatemala has ratified the following instruments which are part of the Warsaw System:

• Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)
• Protocol to Amend the Warsaw Convention of 1929 (The Hague, 28/9/55)
• Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by air Performed by a Person Other than the Contracting Carrier (Guadalajara, 18/09/61)
• Additional Protocol No. 1 (Montreal, 25/9/75)
• Additional Protocol No. 2 (Montreal, 25/9/75)
• Additional Protocol No. 4 (Montreal, 25/9/75)

Montreal Convention 1999

In force and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

c.USD 1,990,000

N.B.: Estimate based on parameters the courts could use to calculate damages. There are no case law records for aviation accidents. Damages will ultimately be awarded at the court's discretion, taking into consideration the evidence provided and pursuant to certain parameters. These figures are a worst-case scenario. In practice, claims tend to be resolved out of court for a much lower sum.

Non-Aviation

Damages will be awarded at the court's discretion, taking into consideration the evidence provided and pursuant to certain parameters (medical and recovery costs, damages and losses, age, marital status, occupation, alimony payments and the losing party's financial capacity).

Punitive damages

No

LITIGATION COSTS

The litigation costs can be negotiated between the parties before trial begins. Otherwise, a tariff applies. Usually, the losing party bears its own and the other party's costs.

Legal interest rate

is usually an average of bank's lending rates, less 2 percentage points.

Does Guatemala have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

There is no specific law or regulation related to the right to claim fixed compensation for the above mentioned situations. However, these kinds of claims can be based on the Consumer and User Protection Law, Decree 006-2003. Damages and losses can also be claimed through a Civil Court with the relevant support.

Warsaw System

The Warsaw Convention is in force in The Bahamas and incorporated into domestic Bahamian law by virtue of The Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953. Chapter III of the First Annex to The Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953 sets out the various events of liability under international carriage.

Montreal Convention 1999

The Bahamas signed the MC1999 on the 28th May 1999 but has not ratified the same and therefore its provisions are not in force in The Bahamas.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material Damages

With respect to international carriage, under Article 1 of the Second Annex to The Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, no limit is placed upon the liability of a carrier to the estate of a deceased with respect to damage sustained by the decedent’s death.

Moral Damages

With respect to Warsaw claims, based on the body of existing jurisprudence of great persuasive authority in this jurisdiction, moral damages are only recoverable upon the existence of bodily injury. However this issue remains novel in The Bahamas as there are no reported local cases deciding this issue.

With respect to local or domestic carriage, a claim for moral damages would be subsumed under the doctrine of nervous shock.

Non-Aviation

Material Damages

The types of damages that may be recoverable in personal injury actions, include:

• Pecuniary damages: medical expenses, lost wages and loss of earning capacity;
• non-pecuniary damages: pain and suffering, loss of amenity.

Claims on behalf of the Decedent and arising out of the death of the Decedent are subject to the Statute Laws of the Commonwealth of The Bahamas, which include inter alia:

• the Survival of Action Act (the “SOA”); and
• the Fatal Accidents Act (the “FAA”).

Actions which the deceased would have been able to maintain himself, had he survived, are instituted by way of the SOA. Claims brought by way of the SOA may include both pecuniary and non-pecuniary damages. Actions for the benefit of the deceased’s dependants are instituted by way of the FAA. (Section 4 of the FAA provides that an action may be brought for the benefit of a spouse, parent, child, niece, nephew or cousin of a deceased person.) Claims brought by way of the FAA are limited to pecuniary losses only.

Moral Damages

A claim for moral damages would be subsumed under the doctrine of nervous shock. A duty of care in relation to nervous shock in the sense of psychiatric damage is owed to those foreseeably and directly involved in the horrific event caused by the defendant's negligence.

Punitive damages

Awards may only be made where in addition to the occurrence of damage, loss or injury, there existed reprehensible conduct on the part of the Defendant including, but not limited to, malice, fraud and cruelty.

LITIGATION COSTS

Varies from case to case but typically range between $22,000 – $42,000

Legal interest rate

Current legal interest rate on judgments is 6.25% per annum pursuant to Rule 2 of the Civil Procedure (Rate of Interest) Rules, 2008

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

The Bahamas does not have an Air Passengers Bill of Rights, which provides for fixed compensation for delay, cancellation nor denied boarding.

If yes, when did it come into force?

N/A

Warsaw System

In force and generally applied by courts.

Jamaica has ratified the following instruments which are part of the Warsaw System:

• Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by air Performed by a Person Other than the Contracting Carrier (Guadalajara, 18/09/61)

Montreal Convention 1999

In force and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

c.USD 160,000 to USD 256,000 (c.JA$25M-40M)

Non-Aviation

As for aviation

Punitive damages

Exemplary damages may be awarded by the court depending on the circumstances of the case.

LITIGATION COSTS

The general principle is that “costs follow the cause”, i.e. the losing party has to pay the costs of the successful party. In some circumstances, each party has to bear their own costs or there may be an apportionment of costs.

Legal interest rate

of 6% (local currency) and 3% (foreign currency) from the date of judgment until payment. Save agreement to the contrary, the respective rates are also used to calculate interest from the date of the breach to the date of judgment.

In relation to personal injury matters, interest on special damages is payable from the date of the injury while interest on general damages is payable from the date of service of the Claim Form.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay - no
• Cancellation - no
• Denied boarding? - no

Warsaw System*

In force and generally applied by courts.

*N.B.: Ecuador has ratified the following instruments which are part of the Warsaw System:

• Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)
• Protocol to Amend the Warsaw Convention of 1929 (The Hague, 28/9/55)
• Additional Protocol No. 4 (Montreal, 25/9/75)

Montreal Convention 1999

In force and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

USD 1,536,000

There is no established liability limit.

Non-Aviation

USD 1,536,000

Damages are high because there is no pre-established formula and the basic methodology is to multiply the years of work-life expectancy by the victim's yearly salary, without applying any deductions. There is very limited case law (if any), so it is uncertain if the courts would apply a more simplistic formula as suggested or one that takes other factors into consideration, thus reducing the overall exposure risks. These figures are the worst-case-scenario. In practice, claims tend to be resolved out of court, for much lower figures, but more often this happens after considerable negotiating efforts, particularly because the plaintiffs' counsel will often argue figures based on the simplistic formula.

Punitive damages

Not applicable

LITIGATION COSTS

Generally, losing party pays for court costs and legal fees (limited by the judge).

Legal interest rate

Controversial whether interest applies to aviation accidents. If so, it accrues from the date of loss and is currently approximately 12% p.a. There is no monetary correction (Ecuador’s currency is the US Dollar).

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

Yes, regulation 381 gives passengers the right to claim fixed compensations for delay, cancellation and denied boarding. It came into force in 2013.

Warsaw System*

In force and generally applied by courts.

*N.B.: El Salvador has ratified the following instruments which are part of the Warsaw System:

Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)

Protocol to Amend the Warsaw Convention of 1929 (The Hague, 28/9/55)

Montreal Convention 1999

In force and generally applied by the courts.

Convention for the Unification of Certain Rules for International Carriage by Air ( currently in force since 06/01/2008)

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material damages: calculated at judge’s discretion.

Moral damages: calculated at judge’s discretion.

Non-Aviation

Depends on the particular circumstances of each case (namely the evidence and the circumstances of the case and the victim)

Punitive damages

Not applicable.

LITIGATION COSTS

May vary. Normally, each party bears its own costs, however, in civil proceedings the judge may rule in favour of the winning party awarding litigations costs as part of damages.

Legal interest rate

Civil Law: 6% Commercial Law: 12% and starts to accrue from the date of loss.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

Yes, but not at a fixed fee. The Consumer’s Protection Law, which entered into force in October 2005, states that if goods and services were not given as agreed upon, consumers have the right to claim compensation. Regarding delay, cancelation or denied boarding, this law applies and passengers should have the right to claim compensation. However, compensation will vary depending on the situation.

Warsaw System

In force since September 25th, 1994, and generally applied by the courts.

Montreal Convention 1999

In force since January 24th, 2016, and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material damages: USD 25,200 at current rates. (18,000 SDRs).

Moral damages: calculated at judge’s discretion

Non-Aviation

Depends on the particular circumstances of each case (namely the evidence and the circumstances of the case and the victim)

Punitive damages

Not applicable.

LITIGATION COSTS

The winning party has the right to request the Court, that the loser party reimburses the expenses and procedural costs.

Legal interest rate

Civil Law: 6% Commercial Law: 7% and starts to accrue from the date of loss.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

No, although the Honduran laws regulate the rights that passengers have to file compensation claims for those matters. Claims falling under laws like the Civil Aeronautics Law do not limit the amount of compensation a passenger can claim.

Warsaw System

In force and generally applied by the courts.

Montreal Convention 1999

In force (since November 4, 2003) and generally applied by the courts.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Total: USD 510,000

Comprising:

Material damages: USD 222,000

Moral damages: USD 288,000

Non-Aviation

Total: USD 510,000

Comprising:

Material damages: USD 222,000

Moral damages: USD 288,000

Punitive damages

Not applicable.

LITIGATION COSTS

Cost usually awarded to the prevailing party. Attorneys’ fees awarded with a finding of frivolity or vexatious multiplication of proceedings.

Legal interest rate

0.50% as to public obligations and 4.25% as to private obligations applicable from the date of judgment until payment.

The Office of Commissioner of Financial Institutions of Puerto Rico periodically changes the legal interest rate.

Warsaw System

Not ratified.

Montreal Convention 1999

Not ratified.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

Material damages: 100,000 Special Drawing Rights (XDR).

Amount established by the Civil Aviation Act – can be exceeded by mutual agreement.

Moral damages: calculated at judge’s discretion

Non-Aviation

Depends on the particular circumstances of each case (namely the evidence and the circumstances of the case and the victim)

Punitive damages

Not applicable.

LITIGATION COSTS

Losing party generally pays for the legal fees and court costs

Legal interest rate

varies constantly and starts to accrue from the date of the accident.

Monetary correction

is applicable (on a retroactive basis at the time of the award) if expressly requested by the claimant

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

If yes, when did it come into force?

It came into force in 2006, since the Civil Aviation Act was enacted.

Warsaw System

In force and generally applied by courts.

Paraguay has ratified the following instruments which are part of the Warsaw System:

• Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw, 12/10/29)
• Protocol to amend the Warsaw Convention of 1929 (The Hague, 28/09/55)
• Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person other than the Contracting Carrier (Guadalajara, 18/09/1961)

Montreal Convention 1999

MC99 is in force.

The Paraguayan Supreme Court (PSC) has ruled that MC99 limits include both material and moral damages.

WE USE AS A BENCHMARK FOR COMPARISON PURPOSES THE DAMAGES LIKELY TO BE RECOVERABLE IN THE FOLLOWING SCENARIO:

DEATH OF A 33 YEAR-OLD MALE, MARRIED, WITH 2 MINOR CHILDREN, EARNING USD 4,000 A MONTH/USD 48,000 PER ANNUM.

Average earnings in this jurisdiction would be considerably lower.

Aviation

In the context of domestic carriage, there is only one reported case from the 1980s where the Supreme Court awarded compensation for the passenger’s death

There is no reported case law applying either the Warsaw System or MC99 in case of death or bodily injury.

Total: c.USD 350,000 to USD 450,000

Comprising:

Material damages: c.USD 150,000 – USD 250,000

Moral damages: c.USD 200,000 (N.B.: awarded at the judge's discretion. Amount estimated based on a recent non-aviation high profile case).

Non-Aviation

As above

Punitive damages

No

LITIGATION COSTS

Losing party bears the cost of the proceedings

Legal interest rate

of 2.5% a month applicable from the date of filing of the claim.

Does your country have a law or regulation which gives passengers the right to claim fixed compensation for:

• Delay
• Cancellation
• Denied boarding?

No